Combs v. Whitten

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

FRANKLIN SAVOY COMBS, )

)

Petitioner, )

)

v. ) Case No. CIV-21-00139-JD

)

RICK WHITTEN, )

)

Respondent.1 )

ORDER ADOPTING REPORT AND RECOMMENDATION

Before the Court is a Report and Recommendation [Doc. No. 19] issued by United

States Magistrate Judge Amanda Maxfield Green on November 2, 2021. The Report and

Recommendation recommends that Petitioner Franklin Savoy Combs’s Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2254 [Doc. No. 1] be dismissed under Younger v.

Harris, 401 U.S. 37 (1971), that Respondent’s motion to dismiss [Doc. No. 9] be denied

as moot, and that Mr. Combs’s pending motions [Doc. Nos. 14–15, 17–18] also be

denied. Judge Green advised Mr. Combs of his right to object to the Report and

Recommendation by November 23, 2021.

Mr. Combs filed a timely objection [Doc. No. 20], and the Court has therefore

1 The Report and Recommendation correctly substitutes Rick Whitten, Warden of

the North Fork Correctional Center in Sayre, Oklahoma, as the Respondent in this action.

[Doc. No. 19 at 1 n.1]. Mr. Combs alleges he is incarcerated at that facility. [Doc. No. 1].

See Rule 2(a), Rules Governing Section 2254 Cases in the United States District Court.

Additionally, because Mr. Combs alleges he is housed at a facility within the

Western District of Oklahoma, he properly filed in this Court and this Court may

proceed, contrary to his venue argument raised in his objection. See 28 U.S.C. § 2241(d)

(“the application may be filed in the district court for the district wherein such person is

in custody”).

conducted a de novo review of those portions of the Report and Recommendation to

which he objected, consistent with 28 U.S.C. § 636(b)(1). Respondent Rick Whitten

(“Respondent”) did not object to Judge Green’s recommendation that the Court abstain

based on the pending nature of the post-conviction relief proceedings in Hughes County

or to any other aspect of the Report and Recommendation, including that the

Respondent’s motion to dismiss be denied as moot.

After a de novo review, the Court agrees with the Report and Recommendation

that abstention applies. In sum, Mr. Combs is challenging his Hughes County, Oklahoma

state-court conviction, but he has pending post-conviction proceedings in Hughes County

on the same bases. See Hughes County Case No. CF-2013-112 (last accessed Jan. 24,

2022). Mr. Combs does not object that the state-court proceedings are ongoing, and upon

the Court’s review of the docket, his second post-conviction applications and

amendments have not been ruled upon by the state court.2

The Tenth Circuit has held that post-conviction motions in criminal cases satisfy

as pending proceedings for the purposes of Younger abstention. See, e.g., Carbajal v.

Hotsenpiller, 524 F. App’x 425, 428 (10th Cir. 2013) (unpublished). The Tenth Circuit

recently reiterated that:

2 Mr. Combs does not object to Judge Green’s findings regarding his second

application for post-conviction relief, amendments, and additional applications, all still

pending in Hughes County District Court. [Doc. No. 19 at 3, 5]. The status of his post-

conviction filings in state court has not changed since Judge Green issued the Report and

Recommendation. See CF-2013-00112, Hughes County District Court, available at

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=hughes&number=cf-2013-

112 and https://www1.odcr.com/detail?court=032-&casekey=032-CF++1300112 (last

accessed Jan. 24, 2022).

[A] prisoner in custody under the authority of a state should not, except in a

case of peculiar urgency, be discharged by a court or judge of the United

States upon a writ of habeas corpus, in advance of any proceedings in the

courts of the state to test the validity of his arrest and detention. To adopt a

different rule would unduly interfere with the exercise of the criminal

jurisdiction of the several states, and with the performance by this court of

its appropriate duties.

Kirk v. Oklahoma, No. 21-6050, 2021 WL 5111985, at *3 (10th Cir. Nov. 3, 2021)

(unpublished; emphasis added) (quoting Whitten v. Tomlinson, 160 U.S. 231, 247

(1895)).

Mr. Combs’s objection [Doc. No. 20] reasserts his argument that the state court

lacks jurisdiction under McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and related cases,

and contends such circumstances create an exception to Younger abstention. See [Doc.

No. 20 at 2] (Younger abstention applies “except where authorized by some Act of

Congress . . . such as . . . the Major Crimes Act . . . or where . . . necessary to aid . . . the

jurisdiction . . . of any federal court . . . .”) (cleaned up). But Mr. Combs has failed to

point the Court to any authority recognizing any such exception applies in the habeas

context or in these circumstances, and the Court is aware of none.

Moreover, this argument has been rejected repeatedly, and the Court finds these

cases persuasive in overruling Mr. Combs’s objection. See, e.g., Driggers v. Crow, No.

CIV-21-336-R, 2021 WL 2371347, at *1 (W.D. Okla. June 9, 2021) (“Despite

Petitioner’s contention that the state court lacked jurisdiction over his state trial and

conviction [as a result of McGirt], Petitioner must nevertheless first address this issue via

post-conviction application, which he is currently attempting to do. As noted in the

Report and Recommendation, Younger abstention applies and Petitioner has not

established that any of the exceptions thereto is applicable.”); Chestnut v. Whitten, No.

CIV-21-155-D, 2021 WL 4823279, at *1 (W.D. Okla. Oct. 15, 2021) (“[Petitioner]

argues that under McGirt Oklahoma state courts lack jurisdiction over his offense and,

thus, he cannot exhaust state court remedies. But there is no exception to the exhaustion

requirement for jurisdictional claims in § 2254 petitions. This objection is overruled.”)

(citing Blanket v. Watkins, 44 F. App’x 350, 351 (10th Cir. 2002) (unpublished)); Ross v.

Oklahoma, No. CIV-20-1092-D, 2020 WL 7775453, at *3 (W.D. Okla. Nov. 20, 2020),

report and recommendation adopted, No. CIV-20-1092-D, 2020 WL 7774915 (W.D.

Okla. Dec. 30, 2020) (“Younger requires the Court to abstain while Petitioner’s appeals

are pending in state court concerning jurisdiction over his underlying criminal

proceedings, and Petitioner has not met the heavy burden to show otherwise.”).

The Court concludes that it should abstain from interfering with the pending state-

court proceedings, Hughes County Case No. CF-2013-112, consistent with Younger v.

Harris, 401 U.S. 37 (1971).3 Because the Court’s abstention results in dismissal of this

action without prejudice, the Court denies all pending motions as moot. See Goings v.

Sumner Cnty. Dist. Att’y’s Off., 571 F. App’x 634, 639 (10th Cir. 2014) (unpublished)

(once a court has decided to abstain, it should go no further).4 No additional inquiry into

3 Even if the Court did not abstain under Younger, the petition would still likely be

dismissed for a similar reason—Mr. Combs’s failure to exhaust his state-court remedies.

See [Doc. No. 19 at 6 n.7]; see also Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir.

1999) (federal courts cannot reach the merits of a petitioner’s habeas claims unless the

federal issue has been “properly presented to the highest state court, either by direct

review of the conviction or in a postconviction attack” (citations omitted)).

4 The Report and Recommendation recommends the Court deny Respondent’s

the case is proper because the Court’s conclusion that abstention applies “ends the

matter.” Id. (citation omitted; emphasis in original).5

Additionally, Deakins v. Monaghan and related cases instruct that courts may

dismiss the case if a party can assert their claims in state court, but courts should stay the

case if there are intertwined legal claims that cannot be asserted in state court. 484 U.S.

193 (1988). See also Myers v. Garff, 876 F.2d 79, 81 (10th Cir. 1989) (affirming

dismissal of equitable claims dismissed under Younger but reversing dismissal of damage

claims that could not be heard in the state court). Here, Mr. Combs has not asserted any

claims for monetary relief, and no doubt exists that he can assert (and has asserted) the

same claims here that he has in state court in his pending requests for post-conviction

relief. See Hughes County Case No. CF-2013-112. Accordingly, a dismissal without

prejudice is appropriate—not a stay.

motion to dismiss [Doc. No. 9] and Mr. Combs’s motion to clarify [Doc. No. 14] and

motions relating to his request to be released on bail [Doc. Nos. 15, 17–18]. The Report

and Recommendation does not specifically recommend denying the motion for summary

judgment [Doc. No. 11] and a “motion for objection to return” [Doc. No. 13], both filed

by Mr. Combs. The Report and Recommendation instead construes these filings as his

combined response or objection to the motion to dismiss. [Doc. No. 19 at 1 n.3]. Mr.

Combs does not object to this construction. Regardless of how characterized, all pending

motions will be denied as moot based on the Court’s abstention and dismissal of this

action without prejudice.

5 To the extent Mr. Combs raised a timely and proper objection in his motion to

clarify [Doc. No. 14], which challenges Judge Green’s issuance of an order requiring

Respondent to respond [Doc. No. 6], the Court does not reach Respondent’s motion to

dismiss [Doc. No. 9] based on its abstention and thus this objection styled as a motion

would appear to be moot as well. Regardless, Rule 4 of the Rules Governing Section

2254 Cases allows the judge to order the respondent to file an answer, motion, or other

response within a fixed time, following preliminary review of the petition. Thus, there

would be no error in Judge Green’s order [Doc. No. 6], even if it were necessary for the

Court to reach the objection noted in [Doc. No. 14].

Finally, under Rule 11(a) of the Rules Governing Section 2254 Cases in the

United States District Courts, “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” To obtain a certificate

of appealability, Mr. Combs must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Combs can satisfy this standard by

demonstrating that jurists of reason could debate whether the petition should have been

resolved in a different manner or that the issues presented are adequate to deserve

encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also

Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012). The Court finds that reasonable jurists

could not debate the Court’s determination that this Court should abstain from hearing

Mr. Combs’s habeas petition, and therefore the Court declines to issue a certificate of

appealability.

CONCLUSION

For the reasons stated above, the Court ADOPTS the Report and Recommendation

[Doc. No. 19] for the reasons stated therein and DISMISSES this action without

prejudice consistent with Younger v. Harris, 401 U.S. 37 (1971). All other pending

motions [Doc. Nos. 9, 11, 13, 14, 15, 17 and 18] are DENIED as moot. The Court

DENIES a certificate of appealability.

IT IS SO ORDERED this 24th day of January 2022.

a lek force

UNITED STATES DISTRICT JUDGE